United States: What’s A Significant Nexus? The Answer, My Friend, Is Flowin’ Through The Ditch.

Even assuming that the "significant nexus" test from
Justice Kennedy's concurring opinion in
Rapanos defines waters of the United States subject to Clean
Water Act jurisdiction, the question remains what establishes a
significant nexus. In a
decision earlier this week, the 4th Circuit Court of
Appeals provided some important guidance in answering this
question. The news is good for EPA and the Corps, not so good
for developers.

The Court laid out four general precepts that apply to all
cases:

Either qualitative or quantitative evidence may demonstration
jurisdiction. Here, the Court rejected the developer's
argument that, because the project involved only a tiny percentage
of the watershed, the nexus simply could not be
"significant" to the watershed.

Expert evidence that the nexus is not "statistically
significant" to the watershed "sets the bar too high, as
purely qualitative evidence may satisfy the significant nexus
test."

While a court will assess the various different wetlands
functions, "the ultimate inquiry is whether the collective
effect of these functions is significant."

Finally, since the purpose of the CWA is both to "restore
and maintain" the nation's waters, in a permitting
context:

"The Corps exercises its jurisdiction to prevent damage and
thus cannot be expected to present evidence of the actual
ecological impact of the wetlands on downstream waters."

The facts are too detailed for blog discussion. The
geographic nexus was this: The project involved 4.8 acres of
a 448 acre wetland. The wetlands are adjacent to a 2,500 foot
man-made ditch, which itself connects to the Saint Brides Ditch,
which joins a small tributary, which ultimately reaches the
Northwest River, seven miles from the wetlands. Sounds
attenuated, no?

The court found the following two factors sufficient to
demonstrate the required significant nexus:

The ACOE actually obtained some flow data and the Court found
that the Corps' determination of a hydraulic connection was not
arbitrary and capricious.

The Corps' found that the Northwest River has low dissolved
oxygen levels and that the wetlands at issue trap nitrogen, which
could otherwise worsen the problem.

QED. The bottom line is that, as long as they do their
job, EPA and the Corps are going to win most of these cases.

After a ruling by Judge Stephen V. Wilson of the U.S. District Court for the Central District of California in Los Angeles Waterkeeper, et al v. Pruitt, et al, case number 2:17-cv-03454 (August 9, 2018).

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